Faculty Director, Access to Justice Lab

Biography

Jim is currently Professor of Law, and he teaches courses on civil procedure, expert witnesses, and voting regulation. Before coming to the law school in 2007, Jim completed his Ph.D. in statistics at Harvard University. Prior to this, Jim practiced law for six years, three for the Department of Justice (Programs Branch), three for Jenner & Block. He tried to focus his practice on employment discrimination, voting rights, and the Decennial Census, but alas, he also had to learn how airplanes get on and off aircraft carriers (in the A-12 litigation, originally filed in 1989 and still going), as well as how to deal with structural injunctions in long-running housing desegregation cases. Currently, Jim's research focuses on statistics and litigation, including ecological inference models often used in cases under Section 2 of the Voting Rights Act as well as the application of counterfactual frameworks of causation to civil rights issues. His current projects concern redistricting, election administration, causal inference, evaluation of delivery of legal services, and adjudicative system design.

We persuaded entities conducting two civil Gideon pilot programs to randomize which potential clients would receive offers of traditional attorney-client relationships from professional service provider staff attorneys and which would receive only limited (“unbundled”) assistance. In both pilot programs potential clients were defendants in housing eviction proceedings, and both programs were oversubscribed. In this Article, we report the results of one of these two resulting randomized control trials, which we label the “District Court Study,” after the type of the court in which it took place. In the District Court Study, almost all study-eligible eviction defendants received limited assistance in the form of help in filling out answer and discovery request forms, and most also attended an instructional session on the summary eviction process. After receiving this limited assistance, each member of a randomly selected treated group received an offer of a traditional attorney-client relationship from one of the legal services provider’s staff attorneys; each member of the corresponding randomly selected control group received no such offer. We compare outcomes for the treated (offered traditional representation from a service provider staff attorney) group versus the control (no such offer) group on a variety of dimensions, focusing primarily on possession of the unit, financial consequences of the litigation, and measures of court burden.
At least for the clientele involved in this District Court Study, a clientele recruited and chosen by the service provider’s proactive, timely, specific, and selective outreach and intake system, an offer of full representation mattered. Approximately two thirds of defendants in the treated group, versus about one-third of defendants in the control group, retained possession of their units at the end of litigation. Using a highly conservative proxy for financial consequences, treated group defendants received payments or rent waivers worth a net of 9.4 months of rent per case, versus 1.9 months of rent per case in the control group. Both results were statistically significant. Meanwhile, although treated cases did take longer to reach judgment, the offer of representation caused no increase in court burden as measured by other, more salient metrics.
Our results are interesting on a different dimension. A fundamental assumption of the adversary system is that the “right” answer will emerge from a process of contested facts and law in which both parties are represented by competent counsel. In our treated group, 86% of plaintiffs and 97% of defendants were represented. Under the aforementioned assumption, then, the outcomes in our treated group are a strong proxy for the “right” results in summary eviction cases, at least with respect to the class of potential clients involved in the study. The disparity in outcomes between our treated and control groups suggests that, with respect to the clientele in this study, the District Court summary eviction process did not produce the right results for control group defendants. This was true even though control group defendants received substantial (but limited) legal assistance, and even though the adjudicatory process included certain measures designed to promote access to justice, such as mediation and some judge-initiated questioning. Thus, the adjudicatory system did not provide full access to justice despite the best efforts of personnel within it.
We discuss possible reasons for the magnitude of the differences between our treated and control groups. In particular, we highlight that our randomized design allows gold-standard inferences about how much an offer of full representation matters for potential clients who had already received substantial legal assistance. But we also highlight that our results may suggest that isolating a set of clients for whom limited representation is inadequate may require service provider investment in a proactive, timely, specific, and selective outreach and intake system. For these and other reasons, we caution against either overinterpretation and underinterpretation of this study.
After reporting the results of the District Court Study, we offer thoughts as to the future of the study of the limited legal assistance programs and of legal services programs in general.

Is it feasible in the current United States to administer voter identification laws in a race-neutral manner? We study this question using rigorous field methods and state-of-the-art statistical techniques, thus accounting for sources of uncertainty (including survey non-response and clustering) that previous studies ignore. We conduct a sensitivity analysis to account for voters who were legally required to have been asked for ID under federal and state law. We conduct an experiment with a training program that clarified proper ID law administration. Finally, we study a jurisdiction and an election in which administration of ID laws was unlikely to pose issues of racial difference, and in which (under the law) the decision to request an ID was nondiscretionary. We find strong evidence that Hispanic and black voters were asked for identification at higher rates than white voters, even after adjusting for a number of other factors. The magnitudes of the differences are significant. We explore the theoretical and legal consequences of our findings.

We report the results of the first of a series of randomized evaluations of legal assistance programs. This series of evaluations is designed to measure the effect of both an offer of and the actual use of representation, although it was not possible in the first study we report here to measure constructively all effects of actual use. The results of this first evaluation are unexpected, and we caution against both overgeneralization and undergeneralization.
Specifically, the offers of representation came from a law school clinic, which provided high-quality and well-respected assistance in administrative “appeals” to state administrative law judges (ALJs) of initial rulings regarding eligibility for unemployment benefits. These “appeals” were actually de novo mini-trials. Our randomized evaluation found that the offers of representation from the clinic had no statistically significant effect on the probability that unemployment claimants would prevail in their “appeals,” but that the offers did delay proceedings by, on average, about two weeks. Actual use of representation (from any source) also delayed the proceeding; we could come to no firm conclusions regarding the effect of actual use of representation (from any source) on the probability that claimants would prevail. Keeping in mind the high-quality and well-respected nature of the representation the law school clinic offered and provided, we explore three possible explanations for our results, each of which has implications for delivery of legal services.
We also conduct a review of previous quantitative research attempting to measure representation effects. We find that, excepting the results of two randomized studies separated by more than thirty years, this literature provides virtually no credible quantitative information on the effect of an offer of or actual use of legal representation. Finally, we discuss disadvantages, advantages, and future prospects of randomized studies in the provision of legal assistance.

We will never have enough lawyers to serve the civil legal needs of all low- and moderate-income (LMI) individuals who must navigate civil legal problems. A significant part of the access to justice toolkit must include self-help materials. That much is not new; indeed, access to justice commissions across the country have been actively developing pro se guides and forms for decades. But the community has hamstrung its creations in two major ways. First, by focusing these materials on educating LMI individuals about formal law, and second, by considering the task complete once the materials are available to self-represented individuals. In particular, modern self-help materials fail to address many psychological and cognitive barriers that prevent LMI individuals from successfully deploying their contents.
This Article makes two contributions. First, we develop a theory of the obstacles LMI individuals face when attempting to deploy professional legal knowledge. Second, we apply learning from fields as varied as psychology, public health, education, artificial intelligence, and marketing to develop a framework for how courts, legal aid organizations, law school clinics, and others might re-conceptualize the design and delivery of civil legal materials for unrepresented individuals. We illustrate our framework with examples of reimagined civil legal materials.

I. Glenn Cohen & D. James Greiner, From Medical Experimentation to Non-Medical Experimentation: What Can and Cannot Be Learned from Medicine as to the Ethics of Legal and Other Non-Medical Experiments?, inCharles Fried, Medical Experimentation: Personal Integrity and Social Policy: New Edition 192 (Franklin Miller & Alan Wertheimer eds., Oxford Univ. Press 2016).

Categories:

Health Care

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Legal Profession

Sub-Categories:

Bioethics

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Legal Ethics

Links:

Type: Book

Abstract

After an appreciation of the contribution of the main text to the clarification and deepening of the utility and dilemmas of randomized clinical trials (RCTs) in medicine, this chapter notes the present ubiquity of RCTs in, for instance, social welfare programs, labor economics, education, political science, sociology, and law, several of which are discussed in detail. The chapter notes ways in which these are and are not like RCTs in the context of medical care. In several of the law examples, such as randomizing bail conditions and assigning lawyers to meet legal needs of low-income individuals, none of the subjects of the research are (yet) in a client relationship similar to that of a patient, and so there is no analogous duty on the part of the experimenters. It is an allocation of scarce resources in part carried out in a way that may yield more reliable knowledge.

D. James Greiner, What We Know and Need to Know About Outreach and Intake by Legal Services Providers, 67 S. C. L. Rev. 287 (2016).

Categories:

Legal Profession

Sub-Categories:

Legal Services

Links:

Type: Article

Abstract

This essay discusses the importance of outreach and intake in the role that legal services providers fill in the current U.S. legal system, as well as how little is known about either subject.

D. James Greiner & Andrea Matthews, The Problem of Default, Part I (June 21, 2015).

Categories:

Government & Politics

Sub-Categories:

Courts

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State & Local Government

Type: Article

Abstract

Routine default threatens the foundations of the United States court system. We study the problem of routine default by human defendants, using the Boston Municipal Court’s debt collection docket as our laboratory. Arbitraging various non-law literatures, we designed interventions consisting of two forms of mailings. We study the effectiveness of our two mailings in a randomized control trial that includes a no-intervention control group. We find no difference in effectiveness as between our two mailings, but that both roughly double the rate at which defendants participate in their lawsuits. Results are statistically significant. We discuss implications of our findings.

This article describes a proposed randomized control trial (RCT) involving individuals in financial distress, specifically, individuals sued on a credit card debt collection case by a debt buyer or creditor. The aim of the RCT is to evaluate the effectiveness of two interventions often proposed to help individuals in financial distress improve their financial health. We intend to test, inter alia, whether (1) an offer of legal representation in the debt collection case, (2) an incentive to undergo the same financial counseling required in bankruptcy, or (3) a combination of both treatments have an effect on the financial health of financially distressed consumers. Our primary outcome measure will be credit scores and reports, although we also aim to survey study participants about other outcomes such as changes in health, assets, and general well-being.
We describe in detail not just the methodology of the study, but also the mechanics of how we have gone about executing this complex field experiment so far. The objective in doing so is to demystify the process for scholars, legal aid lawyers, and clinical professors who have not had direct experience with empirical methods, and to encourage them to think about conducting RCT evaluations of their own programs. The article also describes three other goals we seek to advance through the project. The first is a deeper understanding of debt collection in the courts. Allegations of abuse abound about the industry generally and legal collections specifically, but to date, the evidence is largely anecdotal. We will be uniquely positioned to learn about whether the allegations are more than anecdotes. The second is increasing access to justice for unrepresented defendants in collection cases. Along with a team of dedicated law students, the study team is developing an attorney litigation manual and pro se materials, including court forms and scripts, for debt collection litigation. Before making the pro se materials available, they will be field tested with individuals in similar situations to those facing study participants. The third goal is developing an innovative pedagogical approach to legal instruction that combines doctrine and practice. A majority of the law students participating in the project are doing so in the context of a seminar which incorporates both doctrinal instruction about the consumer credit system and clinical experience.
We hope that this article provides our readers both with ideas for future research projects and with ideas about how to incorporate diverse goals in a single study design.

We discuss the history of the exit poll as well as its future in an era characterized by increasingly effective and inexpensive alternatives for obtaining information. With respect to the exit poll's future, we identify and assess four purposes it might serve. We conclude that the exit poll's most important function in the future should, and probably will, be to provide information about the administration of the franchise and about the voter's experience in casting a ballot. The nature of this purpose suggests that it may make sense for academic institutions to replace media outlets as the primary implementers of exit polls.

We discuss the concept of "unbundled" representation in litigation matters, in which a client retains a lawyer to provide legal services short of those that would be provided in a traditional attorney client relationship. Specifically, we trace the evolution of the process of mainstreaming unbundled representation in three case study states: Colorado, Massachusetts, and Alabama. We conclude by providing a comprehensive bibliography of academic and some other writings on the subject of unbundled representation.

Despite their ubiquity, observational studies to infer the causal effect of a so-called immutable characteristic, such as race or sex, have struggled for coherence, given the unavailability of a manipulation analogous to a “treatment” in a randomized experiment and the danger of posttreatment bias. We demonstrate that a shift in focus from actual traits to perceptions of them can address both of these issues while facilitating articulation of other critical concepts, particularly the timing of treatment assignment. We illustrate concepts by discussing the designs of various studies of the role of race in trial court death penalty decisions.

Racial bloc voting is the central concept in judicial regulation of redistricting. For the past several decades, the definition and proof of this concept have depended on two premises: that polities can be conceptualized in biracial terms and that nearly perfect information on voting patterns can be inexpensively obtained from simple statistical methods. In fact, however, neither premise has been true for some time, as the nation has become multiracial and allegations have increased that Caucasians vote less monolithically than before, with both assertions imposing severe stress on the simple statistical methods previously used to assess voting patterns. In this article, I analyze these challenges to traditional understandings and attempt to answer the following question: how can we litigate racial bloc voting well in the current era? I provide recommendations, including greater reliance on more sophisticated statistical methods, an increase in the use of sample surveys, and a renewed receptivity to nonquantitative evidence on voting patterns, while clarifying that each of these recommendations carries substantial costs. I then discuss the conceptual and normative implications of my recommendations on the empirics.

The Civil Rights Movement had a variety of transformative effects on the way federal courts hear and decide cases; among them was the introduction of quantitative analysis as a staple of certain types of high-profile adjudication, particularly in redistricting cases. The first judicial foray into regulating the drawing of electoral districts-the "one person, one vote" line of cases-was premised on an equality norm expressed in explicitly numerical terms. In these cases, the Supreme Court settled on numerical guidelines requiring only simple arithmetic to implement. Since then, however, the federal judiciary has engaged with increasingly complicated quantitative measurements and statistical techniques, first in the racial vote dilution cases, then in the "overuse of race" cases, then in the partisan gerrymandering cases.

Despite its shortcomings, cross-level or ecological inference remains a necessary part of some areas of quantitative inference, including in United States voting rights litigation. Ecological inference suffers from a lack of identification that, most agree, is best addressed by incorporating individual-level data into the model. In this paper we test the limits of such an incorporation by attempting it in the context of drawing inferences about racial voting patterns using a combination of an exit poll and precinct-level ecological data; accurate information about racial voting patterns is needed to assess triggers in voting rights laws that can determine the composition of United States legislative bodies. Specifically, we extend and study a hybrid model that addresses two-way tables of arbitrary dimension. We apply the hybrid model to an exit poll we administered in the City of Boston in 2008. Using the resulting data as well as simulation, we compare the performance of a pure ecological estimator, pure survey estimators using various sampling schemes and our hybrid. We conclude that the hybrid estimator offers substantial benefits by enabling substantive inferences about voting patterns not practicably available without its use.

D. James Greiner, Not All Statistics Are Created Equal, 122 Harv. L. Rev. F. 1 (2010).

Categories:

Discrimination & Civil Rights

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Disciplinary Perspectives & Law

Sub-Categories:

Civil Rights

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Empirical Legal Studies

Links:

Type: Article

Abstract

In Statistics Is a Plural Word, a response to my article Causal Inference in Civil Rights Litigation, Dean Steven Willborn and Professor Ramona Paetzold take issue both with my critique of regression as it is currently used in civil rights litigation and with my advocacy of the potential outcomes framework. In this Reply, I argue that Dean Willborn and Professor Paetzold’s response does not address (and thus cannot refute) the central lessons of Causal Inference, despite purporting to agree with those lessons. In particular, after “agree[ing] wholeheartedly” that a definition of a causal effect is necessary for the use of statistics in civil rights, Plural does not offer a definition. In the absence of such a definition, the purpose of statistics in civil rights litigation is unclear. The potential outcomes framework, in contrast, provides the needed definition and clarifies many subsidiary concepts, with salutary consequences following naturally from a start in the right place.

Despite its potential pitfalls, ecological inference is an unavoidable part of some quantitative settings, including US voting rights litigation. In such applications, the analyst will typically encounter two-way tables with more than two rows and columns. Although several ecological inference methods are currently available for 2×2 tables, there are fewer options for analysing general R×C tables, and virtually none that model counts as opposed to fractions. We propose a count R×C method that respects the bounds deterministically, that allows for complex relationships between internal cell quantities, that is easily extensible and that results from transparent assumptions. We study the method via simulation, and then apply it to an example that is drawn from the state of Texas relevant to recent redistricting litigation there.

Civil rights litigation often concerns the causal effect of some characteristic on decisions made by a governmental or socioeconomic actor. An analyst may be interested, for example, in the effect of victim race on jury imposition of the death penalty, in the effect of applicant gender on a firm’s hiring decisions, or in the effect of candidate ethnicity on election results. For the past thirty years, such analyses have primarily been accomplished via a statistical technique known as regression. But as it has been used in civil rights litigation, regression suffers from several shortcomings: it facilitates biased, result-oriented thinking by expert witnesses; it encourages judges and litigators to believe that all questions are equally answerable; and it gives the wrong answer in situations in which such might be avoided. These difficulties, and several others, all stem from the fact that regression does not begin with a paradigm for defining causal effects and for drawing causal inferences. This Article argues for a wholesale change in thinking in this area, from a focus on regression coefficients to an explicit framework of causation called “potential outcomes.” The potential outcomes paradigm of causal inference, which (for lawyers) may be analogized to but-for causation with a renewed emphasis on time, addresses many of the shortcomings of regression as the latter is currently used in civil rights litigation, and it does so within a framework courts, litigators, and juries can understand. This Article explains regression and the potential outcomes paradigm and discusses the latter’s application in the death penalty, employment discrimination, and redistricting settings.

D. James Greiner, Ecological Inference in Voting Rights Act Disputes: Where are We Now, and Where do We Want to Be?, 47 Jurimetrics 115 (2007).

Categories:

Government & Politics

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Disciplinary Perspectives & Law

Sub-Categories:

Empirical Legal Studies

,

Elections & Voting

Links:

Type: Article

Abstract

Recent developments in law and in quantitative methods have combined to place greater emphasis on coherent and accurate techniques of drawing inferences about racial voting patterns in Voting Rights Act litigation. In this article, I examine the challenge the secret ballot poses for such inferences; I then discuss four so-called “ecological inference” methods designed to address the issue. I argue that the two techniques that have dominated this field for more than 20 years should be abandoned; that a third, well-publicized method should be used only when no other is feasible; and that a fourth, while representing the state of the art at present, has shortcomings that researchers should address. To aid in understanding, I apply each technique outlined to a concrete data set. I conclude with a discussion of what makes a good method.